Property division frequently comes to the forefront in a New York divorce regardless of whether the couple has accrued significant assets or is of moderate means. Since this is a complex topic and people can engage in extended disagreements about how their property will be split as part of the case, it is important to understand the basics about equitable distribution. Even in cases in which the couple is on relatively good terms, there can be discord. When the parties are acrimonious, it can be long-term and costly. Having professional assistance may be essential from the outset.
Equitable does not mean equal
People often make the mistake of believing that equitable distribution means that the property will be divided equally. That is not the case. The courts will strive to come to a fair assessment as to which side should get what property. It is not necessarily split down the middle. This can be a challenge when the spouses both want a certain property like a marital home, items of sentimental value or financial assets. There are two kinds of property that will be considered: separate property and marital property. Generally, if the property was acquired before the marriage or the person received it by descent even after the marriage, it will be separate property. Items that were acquired during the marriage will be marital property.
This can also stoke confusion if there was a property that rose in value after it was acquired by one as separate property. Real estate could have become more valuable. A business might have improved. Even if one owned it prior to the marriage, the non-owning spouse’s contributions to it could be considered as marital property. For those who have a retirement plan or a pension plan, it is important to remember that this is considered marital property and will be subject to division in the case.
To be fully protected, it is useful to have experienced assistance
People who are already dealing with the emotional, personal and financial upheaval of a divorce could be concerned about how property will be divided in the case. If they started under the presumption that equitable distribution would yield an even split, the revelation that this is not the case could cause more anxiety. In some cases, a negotiated settlement is possible. In others, it will be necessary to go to court. To be shielded and receive a fair amount, it is wise to know the law and how property will be analyzed by the court.